1
REPORTABLE
CASE NO: SA 43/2009
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
SOCIAL SECURITY COMMISSION / FIRST APPELLANTEXECUTIVE OFFICER OF THE SOCIAL
SECURITY COMMISSION / SECOND APPELLANT
and
JAN JACOBUS COETZEE / RESPONDENT
Neutral Citation:Social Security Commissionv Coetzee (SA43-2009) [2016]NASC (19 February 2016)
Coram:SHIVUTE CJ, STRYDOM AJA and LANGA AJA
Heard:12 July 2011
Delivered:19 February 2016
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APPEAL JUDGMENT
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SHIVUTE CJ (STRYDOM AJA concurring):
[1]One of the issues that should be dealt with at the outset is that of a quorum. Our late colleague Langa AJA to whom the responsibility of preparing the draft judgment was given regretfully passed away before he was able to do so. The court is thus now composed of two judges of appeal as opposed to three as required by s 13(1) of the Supreme Court Act 15 of 1990. However, s 13(4) of that Act authorises the finalisation of the appeal by the remaining two judges if they agree on judgment. This legal position has already been traversed by this court in cases including Wirtz v Orford another 2005 NR 175 (SC) and it is not necessary to belabour the point. Given that Strydom AJA and myself are inclined to agreeon the outcome, I proceed with the judgment.
[2]The facts giving rise to the case, as well as the outline of the parties’ arguments, are simply stated. It is worth examining them first by way of introduction before proceeding to the detailed statutory framework.
[3]The background to the case is as follows. The respondent, Mr Coetzee, was an artisan employed in the Ministry of Works, Transport and Communication (as it was then known). He suffered a fall during the course of his employment in April 1996, tumbling from a ladder while repairing a roof in Possession Island, in the district of Lüderitz. He alleges that there is conclusive medical evidence that demonstrates this fall was the cause of his resulting disability. He claimed compensation for this injury from the first appellant, the Social Security Commission (the Commission).
[4]The relevant provisions governing such claims are to be found in the Employee’s Compensation Act 30 of 1941 (the ECA) and the Social Security Act 34 of 1994 (the SSA). The former will be the subject of extensive analysis in this judgment. For now it suffices to note that the applicable legislation empowers the Commission to adjudicate on claims falling under the ECA. The Commission, more specifically a Mr Richard Edwin Coomer, dismissed the claim in April 2005 on the basis that he was not satisfied that Mr Coetzee’s present degenerative condition was the result of an accident arising out of and in the course of his employment as required by s 27 of the ECA. Aggrieved by this decision, Mr Coetzee continued sending further medical evidence up and until 16 May 2008. After this he launched an appeal to the Labour Court against the decision. Section 25(1) of the ECA confers on the Labour Court jurisdiction to hear such appeals. Only one of the four grounds of appeal in that Court is presently material, and it turns on the failure of MrCoomer to refer the matter to a formal hearing as contemplated in s 56 of the ECA.
[5]The Commission opposed the appeal for five reasons, which fall neatly into two overall bases. The first was that the application was brought out of time. It was argued that the application for compensation had been brought eight and a half years too late; did not meet the requirements of s 54 of the ECA; that the accident in question did not come to the notice of Mr Coetzee’s employer within 12 months of the date of the accident as required by s 51 of the ECA, and the appeal was not lodged within 60 days of the decision appealed against as s 25 of the ECA prescribes. The second related to the medical evidence. It was argued that the medical reports in question did not establish that the medical condition arose in the course of his employment and that in any case the Medical Board that subsequently examined Mr Coetzeewhen he applied for a discharge from employment on medical grounds did not find that the alleged accident conclusively caused his disability.
[6]There was a further issue of delegation. It was argued on behalf of Mr Coetzee that Mr Coomer could not place himself in the shoes of the Commission and that the matter should be referred back to the Commission for that body to hear the matter. On the other hand, it was argued that the issue of delegation was not properly raised in the heads of argument, and that, in any case, the Commission had powers to delegate and Mr Coomer was a valid recipient of such delegation.
[7]The Labour Court held, on the issue of delegation, that the objection that the point had not been raised was without substance. The court found that Mr Coomer should have voluntarily provided information as to his authority to substantiate his claim that he was a lawful delegate of power. The crucial finding was at para 9 of that court’s judgment where it was stated that:
‘Inasmuch as I would want to believe that Coomer was delegated to act on behalf of the first respondent, except for Coomer’s say so, the facts before Court do not sustain that belief.’
[8]In relation to the need to refer the matter under s 56 of the ECA to the Commission, it was held that the nature of the case warranted the latter’s attention such that it was an ‘abdication’ rather than a ‘delegation’ of its powers to allow Mr Coomer to dispose of the claim for compensation. The decision was, therefore, unlawful and had to be set aside. The court ordered the matter to be reconsidered by the Commission as contemplated by s 56 of the ECA. The Commission and the Executive Officer felt aggrieved by this decision and so they sought leave to appeal to this court. Their application was refused by the Labour Court. They are here with leave of this court.
Legislative framework
[9]It is now necessary to turn to the detailed consideration of the legislative framework in this area. Under the ECA, an employee or his or her dependant is deprived of their common law right of action for damages against the employer in respect of an injury due to an accident while in the employ resulting in disability or death. Section 7 of that Act replaces this right of action with a statutory redress mechanism in the form of compensation under the ECA. The section provides as follows:
‘7Substitution of compensation for other legal remedy
(a)No action at law shall lie by an employee or any dependant of an employee against such employee's employer to recover any damages in respect of an injury due to an accident resulting in the disablement or the death of such employee.
(b)No liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of any such disablement or death.’
[10]Sections 38 and 39 provide detail as to how the quantum awarded under the Act is computed. The Act also creates and confers powers on the Commission, in respect of compensation for disability caused by accidents to workmen in the course of their employment (ss 3 and 9). Section 14 of the ECA catalogues the Commission’s powers in respect of the employee’s compensation which include the power to adjudicate upon all claims (s 14(1)(c)) and stipulates that the Commission must decide any question relating to, amongst other things, the right to compensation, the degree of disablement of any employee and the amount and method of payment of any compensation.
[11]Section 48(3) provides that the Commission may delegate powers to the Executive Officer or any other employee. The terms of the delegation are specified as follows in s 108:
‘108Delegation
(1). . .
(2). . .
(3)The Commission may, on such conditions as it considers appropriate delegate to any committee established in terms of section 11 of the Social Security Act, 1994, the executive officer or any other employee of the Commission or any authorized person referred to in section 17, if he or she is not such an employee, any power conferred upon or delegated to it.
(4)The executive officer may, on such conditions as he or she considers appropriate and with the approval of the Commission, delegate to any employee of the Commission, any power conferred upon or delegated to the executive officer.
(5). . . .’
[12]Sections 50 and 51 stipulate notice requirements. In respect of the employee, written notice must be provided of the accident in the prescribed manner as soon as reasonably possible after the accident. There are three pertinent exceptions in s 50(1)(a) and (b). The first is where it is proved that the employer had knowledge of the accident from any other source at or about the time of the accident. The second is where there is, in the opinion of the Commission, no chance of serious prejudice occasioned by the failure to give notice, or, thirdly, that the failure was occasioned by mistake, absence from the Republic or other reasonable cause. An employer must report accidents upon being notified thereof to the Commission. Failure to do so is an offence. (See s 51(1).)
[13]Section 54 provides that no claim for compensation under the Act shall be allowed unless lodged by the employee within six months after the date of the accident. It further provides for the same three exceptions in s 50, discussed above. There is, however, a backstop of 12 months. In other words, the right to benefits under the Act lapses if the accident does not come to the notice of the employer within 12 months of the date of the accident.
[14]Section 56 of the ECA states that the Commission must make such enquiries as it deems necessary after receipt of the claim. If it deems a formal hearing necessary, it must conduct such a hearing in accordance with the specific requirements of the Act.
Counsel’s argument on appeal
[15]The argument of counsel may be summarised as follows.
[16]On behalf of Mr Coetzee, it is argued that discretionary power cannot be delegated. As such it was not possible for the Commission to delegate its power to Mr Coomer to decide whether to hold an oral hearing or not. It is further submitted that there is a presumption against an implied power to delegate such that a public authority must show that its empowering legislation allows a particular delegation. It is contended that the delegation in question was therefore not lawful, absent clear legislative basis. Counsel relies for this proposition on the work of BaxterAdministrative Law (Juta & Co. Ltd: 1984) and the decision of the Eastern Cape Division of the High Court of South Africa in Nelson Mandela Metropolitan Municipality & others v Greyvenouw CC others 2004 (2) SA 81 (SE) para 50. That Mr Coomer was in charge of a complex evaluative process of assessing medical evidence, it is argued, is further support against the court finding a valid delegation. Factually, so it is argued,the abovepositionis supported in that Mr Coomer never signed any correspondence in his own name but always sought the signature of the second appellant, the Executive Officer of the Commission.
[17]Finally, it is contended that because Mr Coomer also decided on behalf of the Commission that there was no need to hold a hearing, it was in conflict with Art 18 of the Constitution which requires administrative bodies to act fairly and reasonably in respect of administrative action.
[18]As to the time delays, it is contended that Mr Coomer acted in a manner that was ‘fundamentally unfair’. He continued to correspond with Mr Coetzee, giving the latter the impression that the only bar to his compensation was the lack of medical evidence, and, as such, should be prevented from relying on the delay as a bar to his compensation. This alleged misleading conduct, too, was said to be in breach of Art 18 of the Constitution.
[19]In the alternative, it is argued that there was knowledge of the accident on the employer’s behalf as contemplated under s 50(1)(a), and, further, there would in any case be no prejudice as envisaged by s 50(1)(b) if the claim for compensation would be heard at this late date. Accordingly, it was submitted that the dispute should be referred to the Commission for a full inquiry as contemplated under s 56 of the ECA.
[20]For the appellants, it is first stressed that the authority of the decision-maker was not challenged in the founding papers. Nor did the respondent adduce any evidence in the Labour Court to address this issue. Further objections are made that the claim for compensation cannot be heard because it is time-barred by the ECA.
[21]In terms of the substance of the delegation point, it was argued that it is not outside the powers of the person considering the claim not to refer a matter for a formal hearing. This is a decision which lies within the discretion of the official.
[22]It was further argued that the conduct of Mr Coomer in correspondence cannot be used to thwart the legislative scheme. It is not possible on the facts for the time-limit to be subverted simply because it was not raised in correspondence.
[23]Finally, it is put that the court should not have referred the dispute for a full hearing. Such a determination is for the Commission and not the court to make. The court should not usurp the former’s role. In any case, counsel draws attention to the fact that Mr Coomer was at no stage provided with evidence tending to prove a nexus between the injury allegedly sustained when falling from a ladder and the degenerative condition he is claiming for, and further elements that cast doubt on the strength of the medical evidence such that his refusal to exercise his discretion under s 56 was entirely reasonable.
[24]Based on these submissions, the court must decide (a) whether there was a valid delegation to Mr Coomer in terms of s 108 of the ECA and (b) if not, whether to remit the issue to the Commission as per s 56. The first question requires consideration of the contours of the doctrine of delegation, as well as its application to the facts of this case. The second requires the court to also consider the relevant time-frames set out in the legislative schemes of the ECA.
Delegation
[25]Whether expressed through the Latin label of delegata potestas non potest delegare, or in the form of a presumption against delegation, the fundamental principle is that power is to be exercised by the body that the legislature has intended it to be wielded by.[1] It is, however, not an absolute principle. As was recognised already long ago, it is a rule whose rigour hinges on the context in question. The point was well-expressed by the Canadian author Willis in 1943:
‘A discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this presumption may be rebutted by any contrary indications found in the language, scope or object of the statute.’[2]
[26]At the heart of the court’s assessment of whether a given delegation is lawful lies a tension between two ideas. There is, on the one hand, recognition that there is a clear practical need for delegation – especially so in the modern administrative state where many decisions must be taken and institutions need the autonomy to create expedient machinery to make them. There is, on the other, the need for decisions in our administrative landscape to be taken by the proper and suitably qualified decision-maker. A wanton condonation of all forms of delegation would risk substituting institutionally and democratically illegitimate actors in lieu of those specifically appointed for that task. The point was well-recognised in Baxterat 433:
‘While the practical need for delegation must be recognized, there is a danger that power which the legislature has chosen to be exercised by a specific officer-holder or body might in fact be exercised by someone who is neither as well qualified nor as responsible (politically or otherwise) as the chosen repository of the power.’
[27]It is at this point that we must note the important distinction between provisions that explicitly contemplate delegation, and those that impliedly authorise it. Given the presumption against delegation, the approach to the two forms of delegation differs. This is a distinction that is well-recognised in many common law jurisdictions, and one that is also present in our own.[3]
[28]Accordingly, when interpreting a legislative provision that explicitly anticipates delegation, it is important for the court to bear the above tensions in mind. Whilst the courts should read the explicit delegation provision strictly, with the presumption against delegation as a starting point of analysis, it should nonetheless construe the provision with administrative practicality in mind.
[29]Here we are presented with a provision that explicitly contemplates delegation, and grants the broadest of discretions to the Commission to effect that delegation. Returning to the language of s 54, the delegation is to be done on ‘such conditions as [the executive officer] considers appropriate’ and in respect of ‘any power conferred upon or delegatedto’ the Executive Officer of the Commission. (Emphases supplied.) This clearly would encompass the power to delegate to Mr Coomer the question of whether to refer a matter to full hearing as per s 56.
[30]This is also supported by another point. If it is to be accepted that it is not possible to delegate the power to refer disputes under s 56 to another, then the legislative scheme of delegation would be thwarted. The Executive Officer could not delegate any decision-making power in respect of the adjudication of employment accidents, as the person who would enjoy that power would not be able to refer a dispute to full hearing under s 56. The Executive Officer would therefore have to take all decisions personally, which may undermine the expeditious resolution of such disputes. The latter is a crucial element of the compensation scheme, and the court should be very slow to reach a construction of the legislation that would saddle the scheme with delay and inconvenience.
[31]It being accepted that, in principle, the power of referral under s 56 can be delegated; it remains to be examined whether Mr Coomer was indeed a valid delegee of that power. The court a quo did not think so, on the basis that the only evidence that was proffered was Mr Coomer’s say-so. With respect, the court a quo erred when it overlooked the fact that this assertion was made under oath. In his affidavit, Mr Coomer clearly stipulated that he assessed and considered the acceptance of liability in respect of claims made to the Commission under the ECA and that he was authorised to do so by delegation. He further asserted that he was duly authorised to make the impugned decision on 22 June 2005.